Unpublished Disposition, 914 F.2d 265 (9th Cir. 1989)

MEMORANDUM^* 

This action arises because Gateway Motorcycle, Inc. ("Gateway"), which operates two Yamaha dealerships in the Portland area, sued Yamaha Motor Corp. ("Yamaha"), its distributor, Dean Collins ("Collins"), the Yamaha Oregon District Manager, and Beaverton Honda-Yamaha ("Beaverton"), a competing dealership, in Oregon state court, alleging that the defendants had violated Oregon's Anti-Price Discrimination Law, O.R.S. Sec. 646.040, and that Yamaha had violated certain contracts.

Gateway alleges that on July 9, 1982, Yamaha agreed to sell Beaverton 556 new motorcycles at discounts ranging from five to twenty percent; these discounts totaled some $400,000. According to Gateway, the first order date for these motorcycles was August 10, with the first invoice issued August 19 and other invoices issued as late as 1983. Gateway further contends that Yamaha did not make such discounts available to Gateway or other Oregon dealers, which led to substantial damages to Gateway and the subsequent closure of Gateway's dealerships.

In March, 1986, ITT Commercial Finance Corp. ("ITT") instituted a foreclosure action against Gateway, also naming Yamaha as a defendant. See ITT Finance Corp. v. Gateway Motorcycle, Inc., No. A8603-01386 (Multnomah Cty.Cir.Ct. filed March, 1986). On July 7, 1986 Gateway cross-claimed against Yamaha, alleging that Yamaha had violated Oregon's Anti-Price Discrimination Law, O.R.S. Sec. 646.040 in its dealings with Beaverton. This cross claim was voluntarily dismissed pursuant to an order stipulated by both Yamaha and Gateway.

On July 28, 1986 Gateway sued Yamaha, Beaverton, and Collins in Oregon county circuit court, alleging a violation of Oregon's Anti-Price Discrimination Law, identical to the ITT cross claim above. See Gateway Motorcycle, Inc. v. Yamaha Motor Corp., No. A8607-04514 (Multnomah Cty.Cir.Ct. filed July 28, 1986). Gateway later added contract claims against Yamaha only. Shortly before trial, Gateway and Beaverton settled and Beaverton was dismissed. On December 14, 1987, the remaining defendants, Yamaha and Collins, filed a petition for removal in the federal district court, as the parties were now diverse. The federal action was docketed as Gateway Motorcycle, Inc. v. Yamaha Motor Corp., No. 87-1379MA (D.Ore. removed Dec. 14, 1987).

Gateway moved for remand of this action back to state court, contending that Yamaha did not file a notice of removal in the state court until January 27, 1988, 41 days after the removal petition had been filed in the district court.¹  In response, Judith A. Martin, a legal assistant employed by Yamaha's counsel, testified by affidavit that on December 14, 1987 she "mailed copies of these documents to plaintiff's counsel" and deposited copies of them "in the box for filing located in Room 210 of Multnomah County Circuit Court." Linda L. Marshall, an attorney for Yamaha, testified by affidavit that she had prepared the proper papers and that on December 14, 1987 gave them to Martin for delivery and filing, which Martin reported back that day had been accomplished. The district court denied Gateway's motion.

In August, 1987, Yamaha filed suit in federal district court against Gateway, alleging contract and quasi-contract claims for Gateway's alleged failure to pay for received goods. See Yamaha Motor Corp. v. Gateway Motorcycle, Inc., No. 87-912MA (D.Ore. filed Aug. 12, 1987). On November 6, 1987 Gateway filed mandatory counterclaims against Yamaha, alleging the same contract and anti-price discrimination claims previously alleged in 87-1379MA.

The district court subsequently consolidated the two federal actions (87-912MA and 87-1379MA) and dismissed Gateway's counterclaims in 87-912MA, as the identical claims appeared in the complaint of 87-1379MA. On March 14, 1989 the district court dismissed Gateway's anti-price discrimination claims by summary judgment.²  The court found that these claims accrued on July 9, 1982, the date of the alleged Yamaha-Beaverton contract, and that Gateway filed its claims on July 28, 1986, beyond the four-year statute of limitations period in effect at the time of filing, as provided by O.R.S. Sec. 646.140(2). The court also held that the "saving" provision of O.R.S. Sec. 12.220 was not applicable, as Gateway's claim in the ITT suit, which was within the four year period, was voluntarily dismissed.

Gateway appeals (1) the December 14, 1987 removal of the state court action to federal court (renumbered 87-1379MA) and (2) the March 21, 1989 dismissal of the anti-price discrimination claims as time-barred. Gateway also seeks attorney's fees on the appeal. We affirm the district court's decision on both issues.

Gateway contends that the district court erred in failing to remand 87-1379MA back to state court, because Yamaha did not file a notice of removal with the state court until January 27, 1988, forty-one days after filing its petition for removal, and thus failed to meet the promptness requirement of the federal removal statute, 28 U.S.C. § 1446(e). Yamaha argues that the district court implicitly found that Yamaha did file a copy of the petition with the state court and had served a copy on Gateway on December 14, 1987, the same day it filed the petition for removal with the district court. Yamaha further argues that even if the district court did not find that such a notice was filed, the prompt notice to Gateway serves as a "saving factor." See Manufacturers & Traders Trust Co. v. Hartford Acc. & Indem. Co., 434 F. Supp. 1053, 1055 (W.D.N.Y. 1977) (notwithstanding defendant's admitted negligence in failing to file notice with state court, prompt notice to plaintiff operates as "saving factor," thus removal was properly effected).

The federal removal statute requires:

Promptly after the filing of such petition for removal of a civil action and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal....

28 U.S.C. § 1446(e) (emphasis added).

The statutory removal requirements of Sec. 1446 "are strictly construed against removal." Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction, Sec. 3721 at 216-17.

Whether Yamaha filed a timely notice of remand in the state court is a factual question resolved by the district court. We review such factual determinations under the "clearly erroneous" standard. Fed.R.Civ.Pro. 52(a). Although the district court did not state specific reasons in its denial of Gateway's motion to remand, the district court did implicitly find that Yamaha timely filed the petition for removal with the state court. Based upon the two affidavits submitted by Yamaha, it was not clear error for the district court to find that Yamaha had in fact deposited the notice of removal in the state court filing box on December 14, 1987, which satisfies the promptness and notice requirements of Sec. 1446(e).³  Therefore, the district court properly denied Gateway's motion to remand the action back to state court.

C. Dismissal of Anti-Price Discrimination Claims as Time-Barred

1. Gateway first argues that because its cause of action accrued on July 9, 1982, and the statute of limitations applied by the district court, O.R.S. Sec. 646.140(2), which provides a four-year time period, was not passed into law until July 26, 1983, the district court erred in applying retroactively the statute in effect at the time of filing. Gateway contends that the applicable statute is that which was in effect at the time of the accrual of the cause of action. Gateway believes that O.R.S. Sec. 12.080(2), which provides a six-year period, was the statute in effect at the time of the accrual of the cause of action, which would not time-bar Gateway's claim. Yamaha argues that Gateway failed to preserve this issue for appeal, as Gateway did not raise it before the district court. Alternatively, Yamaha argues that Sec. 646.140(2) was properly applied, or if not, O.R.S. Sec. 12.100(2), which provides a three-year period, is the applicable statute.

We conclude that the district court properly applied Sec. 646.140(2). Oregon law provides that amendments to statutes of limitations that decrease the length of the time period are not usually given retroactive effect, absent clear legislative intent to the contrary. See Bergstad v. Thoren, 86 Or.App. 70, 73, 738 P.2d 223, 224 (1987) ("In the absence of legislative direction to the contrary . . . a statute that affects legal rights and obligations arising out of past actions is applied only prospectively." (quotation ommitted)); see also Bower Trucking and Warehouse Co. v. Multnomah County, 35 Or.App. 427, 582 P.2d 439, 442 (1978). The amendment to Sec. 646.140 was approved by the Oregon legislature on July 26, 1983, and became effective January 2, 1984. The more than five month delay in the effective date manifests the clear intention of the legislature that the amended limitations period be applied retroactively. See Bower, 582 P.2d at 443 (Buter, J., dissenting).

Our determination that the amended statute of limitations applies here can also be supported by reference to Oregon case law. The Oregon Supreme Court has held that with respect to an amendment expanding the limitation period, the newly enacted period will be applied to preexisting claims, so long as the litigant is afforded a reasonable opportunity to file the action. Nichols v. Wilbur, 256 Or. 418, 473 P.2d 1022, 1023 (1970). The Nichols court relied heavily upon, and specifically noted that it was following the California Supreme Court's decision in Davis & McMillan v. Industrial Accident Comm., 198 Cal. 631, 246 P. 1046 (1926). The Davis court held as follows:

Before the action is barred by the statute, the Legislature has absolute power to amend the statute and alter the period of limitations prescribed therein, subject only to the requirement that a reasonable time must be allowed for the prosecution of an action or proceedings after the passage of an amendment shortening the period. [246 P. 1047-48, quoted in Nichols, 473 P.2d at 1023 (emphasis added).]

We think it is clear that Oregon's highest court intended to apply the "reasonable time" requirement to amendments which both wxtend and reduce the limitations period.

The reasoning of Nichols was followed and expanded upon in Wolf v. Goin, 26 Or.App. 23, 552 P.2d 258 (1976). Contrary to Gateway's assertion, Wolf is applicable and instructive to our decision. In Wolf, the court held that a six-year limitation period enacted two years after the cause of action arose applied to bar the action. "Following the enactment of [the statute] in 1969, there remained an interval of nearly four years, a patently 'reasonable' period." 552 P.2d at 261. Prior to the enactment of the statute, there was no existing statute of limitation applicable to the action at issue. To put into operation a limitation period where once there was none is surely the most vivid example of a reduction in the time period during which a legal action can be commenced. Thus, the overarching question that must concern us is whether it is reasonable to apply the restricted limitation period to the factual setting before us.

Gateway cites us to numerous cases which have held that a reduction in the statute of limitations will not be given retroactive effect. However, in each of those cases, the application of the new limitation period would have completely cut off or seriously reduced the period in which the aggrieved party might file an action. See, e.g., Boag v. Chief of Police, City of Portland, 669 F.2d 587, 588 (9th Cir. 1982) (two-year period would completely cut off plaintiff's rights); Bergstad, 738 P.2d at 225 (two-year period would cut off plaintiff's legal rights more than three years earlier than prior law); Bower, 35 Or.App. at 432-33, 582 P.2d at 442 (two-year period would have cut off plaintiff's legal rights).

In the case at hand, after the amendment of Sec. 646.140, Gateway still had nearly three years in which to file its claim, which was claarly a "reasonable time." Therefore, the district court was correct to apply the four-year limitation period.

2. Gateway next argues that the district court erred in applying Sec. 646.140, which governs equitable actions, because Gateway brought its anti-price discrimination claim under O.R.S. Sec. 646.150, which governs legal actions. Yamaha contends that the two sections should be read together and that the four year statute of limitations applies to price discrimination claims under either section.

Section 646.140 provides:

Enjoining violations; recovering treble damages; limitation on commencement of actions

(1) Any person injured by any violation ... of ORS 646.010 to 646.180, may maintain any action in any court of general jurisdiction of this state to prevent, restrain or enjoin the violation.... If in such an action, a violation ... is established, the court shall enjoin and restrain or otherwise prohibit such violation ... and the plaintiff ... is entitled to recover three-fold the damages sustained ... and the costs of suit and a reasonable attorney fee....

(2) Actions brought under this section shall be commenced within four years from the date of the injury.

O.R.S. Sec. 646.140.

Section 646.150 provides:

Action for damages. If no injunctive relief is sought or required, any person injured by any violation of ORS 646.010 to 646.180 may maintain an action for damages alone in any court of general jurisdiction in this state. The measure of damages in such action shall be the same as that prescribed by ORS 646.140.

O.R.S. Sec. 646.150.

The legislative history of the 1983 amendment to Sec. 646.140, adding Sec. 646.140(2), the four-year statute of limitations provision, clearly supports Yamaha's position. Before the House Judiciary Committee, Robert Joseph, appearing on behalf of the Board of Governors, testified that the four year-statute of limitations was recommended because "one, it eliminates any issue as to what the statute of limitation is under the state antitrust laws which presently do not provide for [one] and two, it provides consistency with the federal antitrust laws, which also have a four-year statute of limitations." Minutes Regarding House Bill 2304, Amending the Statute of Limitations Applicable to Oregon's Anti-Price Discrimination Act, Before the Oregon House Judiciary Subcommittee (Feb. 15, 1983).

In light of the clear legislative history showing that it was the legislature's intent to make the four-year statute of limitations applicable to all Oregon antitrust claims under the statute, we are not persuaded by Gateway's distinction between the equitable remedies of Sec. 646.140 and the legal remedy of Sec. 646.150, especially as Sec. 646.150 states that damages in such actions shall be the same as that prescribed by Sec. 646.140. Lastly, we find Gateway's argument regarding the 1953 discussion of the classification and arrangement of the O.R.S., stating that code divisions to the right of decimal points signify separate sections, not subsections to be without merit.

3. Gateway next argues that the district court erred in failing to apply the Oregon "saving" statute, O.R.S. Sec. 12.220, as Gateway commenced its action within one year of its earlier cross claim in the ITT suit, which alleged anti-price discrimination violations. Yamaha contends that because Gateway conceded that the cross claim had been improperly filed and voluntarily stipulated to an order dismissing the cross claim, the cross claim was not dismissed upon trial, as required by Sec. 12.220, and therefore the saving statute is inapplicable.

Section 12.220 provides:

Commencement of new action within one year after dismissal or reversal. [I]f an action is commenced within the time prescribed therefor and the action is dismissed upon the trial thereof, or upon appeal, after the time limited for bringing a new action, the plaintiff ... may commence a new action within one year after the dismissal or reversal on appeal.

O.R.S. Sec. 12.220 (emphasis added).

Under Oregon law, a voluntary dismissal granted before commencement of trial is not a "dismissal upon the trial thereof" under O.R.S. Sec. 12.220. Vandermeer v. Pacific N.W. Dev., 284 Or. 517, 519, 587 P.2d 98, 100 (1978) (per curiam). Although Gateway cites Hatley v. Truck Ins. Exch., 261 Or. 606, 494 P.2d 426 (1972) for the proposition that Sec. 12.220 is to be liberally interpreted, the court in Hatley ruled that trial is "the judicial examination of the issues between the parties whether they be issues of law or of fact." Id., 261 Or. at 613, 494 P.2d at 430 (quoting O.R.S. Sec. 17.025). In the ITT suit there simply was no judicial examination of the legal or factual issues regarding Gateway's dismissed anti-price discrimination cross claim.

Furthermore, Gateway's contention that the district court erred in finding Gateway's filing in state court "premature" is without merit. O.R.S. Sec. 12.220 specifically requires that the new action be commenced within one year after the prior dismissal. In the present case, the new action was filed three weeks after the first was filed, and some five months before the first was dismissed. Johnson v. United States, 68 F.2d 588 (9th Cir. 1934), cited by Gateway, does not support its position. In Johnson, the court ruled that an action filed prior to the case before the court was not premature, and therefore tolled the statute of limitations. In the present case it is not the first filed action (the ITT suit) that is premature, it is the second (No. A8607-04514).

4. Lastly, Gateway argues that the district court erred in determining that the limitations period began on July 9, 1982, the date of the alleged discriminatory sale. Gateway contends that the violations, as well as Gateway's injury, were continuing in nature, as evidenced by the first order allegedly dated August 10, 1982 and subsequent invoices allegedly dated August 19, 1982 and after. Thus, Gateway argues that because it filed its state court complaint on July 28, 1986, those injuries suffered on or after July 28, 1982 were not time barred.

The district court's factual finding must be upheld unless "clearly erroneous." Taylor v. Moran Agencies, 739 F.2d 1384, 1385-86 (9th Cir. 1984). A cause of action accrues "each time a plaintiff is injured by an act of the defendants," Zenith Radio Corp. v. Hazeltine Research, 401 U.S. 321, 338 (1971); this circuit has required "an overt act by the defendant ... to restart the statute of limitations and the statute runs from the last overt act." Pace Ind., Inc. v. Three Phoenix Co., 813 F.2d 234, 237 (9th Cir. 1987). An overt act "must be a new and independent act that is not merely a reaffirmation of a previous act; and ... must inflict new and accumulating injury on the plaintiff." Id. at 238.

When Yamaha and Beaverton entered into their contract, the contract specified the prices that Beaverton would pay for the motorcycles and Gateway could compute its amount of damages on each motorcycle by comparing Beaverton's price against its own. Each sale thereafter was a similar violation resulting from the alleged anti-price discrimination contract.

Conclusion

Therefore, we affirm the district court's denial of Gateway's Motion to Remand to State Court and the district court's dismissal of Gateway's anti-price discrimination claims as time barred. Lastly, we deny Gateway's request for attorney's fees, as we have ruled against Gateway on the merits.

AFFIRMED.